2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

10-18-2011 

# J ohn M c C a r th

y v . W a r de n Lew i sbur g
P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 11-1243

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w . v i l l a no v a . e du/thir dc ir c uit_2011/3411 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No s. 11

- 1243 & 11

- 1404

___________ JOHN J. MCCARTHY ,

Appellant

v. WARDEN USP LEWISBURG

____________________________________ On Appeal from the United State s District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 1:10

- cv - 01673 ) District Judge: Honorable William W. Caldwell

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

October 14, 2011 Before: FU ENTES, GREENAWAY, JR., and GREENBERG , Circuit Judges

(Opinion filed : October 18, 2011 )

___________ OPINION

___________ PER CURIAM Federal prisoner John J. McCarthy, proceed ing pro se, has brought two appeals before this Court

. The first challenges a Magistr ate Judge’s report recommending that McCarthy’s habeas petition filed pursuant to 28 U.S.C. § 2241 be dismissed; the second2

challenges the District Court’s order adopting that recommendation. For the reasons that follow, we lack appellate jurisdiction ove r the former appeal, and will affir m the District Court’s order at issue in the latter appeal.
I. In January 1994, the United States District Court for the District of Connecticut ( “ the District of Connecticut”) sentenced McCarthy to 235 months’ imprisonm ent following his conviction for two counts of possession of a firearm by a prohibited person

. At sentencing, McCarthy’s trial counsel informed the court that McCa rthy would soon be sentenced on s tate criminal charges that had been pending in Connecticut since 1992 , and that his sentence for those charges would likely run concurrently with his federal
sentence. Nonetheless, the District of Connecticut did not specify whether McCarthy’s federal sentence would run concurrentl y with, or consecutively to, tha t future state
sentence. In April 1994, McCarthy was sentenced in Connecticut state court to seven years’ imprisonment, to run concurrently with his f ederal sentence. Thereafter, h e remained in state c ustod y to serve that state sentence. 1 In August 1995 , McCarthy requested the Bureau of Prisons (“BOP”) to designate, nunc pro tunc, the state facility at which he was i ncarcerated a federal prison , which would allow him to serve his state and federal sentences concurrently . T he BOP denied that request , sug gesting that it lacked independent authority (i.e., separate from the

1 McCarthy’s appearances in federal court had been made pursuant to a writ of habeas corpus ad prosequendum, as it appears that he had been in state custody since his arrest3

sentencing judge) to make such a designation . In June 1998, the United States Court of Appeals for the Second Circuit, reviewing the District of Connecticut’s denial of McCarthy’s petit ion challenging the BOP’s decision, held t hat the BOP did indeed have authority to grant McCarthy’s request for nunc pro tunc designation

. See McCarthy v.
Doe , 146 F.3d 118, 123 (2d Cir. 1998). Accordingly, the Second Circuit remanded the matter to the D istrict of Connecticut with instructions to remand to the BOP for consideration of the merits of McCarthy’s request. See id. On remand, the BOP denied McCarthy’s reque st, highlighting his “ extensive ” criminal record and the federal sentencing judge’s sil ence as to whether his federal and state sentences would run concurrently. McCarth y was released from state custody on February 5, 1999, and his federal sentence commenced at that time. In 2 004, while incarcerated at the United States Penitentiary (“USP” ) in Leavenworth, Kansas, he filed a habeas petition pursuant to 28 U.S.C. § 2241 in the United States District Court for the District of Kansas ( “the District of Kansas”) , claiming that the BOP was required to credit his federal sentence for the time he h ad spent in state custody

. The District of Kansas dismissed the petition, and the United States Court of Appeals for the Tenth Circuit affi rmed on appeal, concluding that, “in light of Mr. McCarthy’s criminal history and prior convictions, the [BOP] did n ot abuse its discretion when it declined to designate a state institution for the service of his

on state charges in 1992.4

federal sentence.” See McCarthy v. Warden, USP Leavenworth , 168 F. App’x 276, 277 (10th Cir. 2006). In 2007, at which time McCarthy was i ncarcerated at USP L ewisburg in Pennsylvania, he filed a § 2241 petition in the United States District Court for the Middle Distri ct of Pennsylvania ( “the District Court ”). Attached to his petition were: (1) a
recent request he had made to the BOP to credit his federal sent ence for the time he had

s pent in state custody ; and (2) a response from a BOP supervisory inmate s yste ms

s pecialist, stating that this request would be forwarded to the BOP’s Designation and Sentence Computation Center for review. In August 2007, the Dis trict Court dismissed the petition as unexhausted. In doing so, the court noted that “any subsequent § 2241 petition claiming that the BOP abused its discretion by denying McCarthy’s request for nunc pro tunc designation may be subject to consideration fo r abuse of the writ of habeas
corpus. ” McCarthy v. Warden USP Lewisburg , No. 1:07

- cv - 1052, 2007 U.S. Dist. LEXIS 62882, at *4

- 5 n.1 (M.D. Pa. Aug. 27, 2007). McCarthy did not appeal from that judgment. In May 2008, McC arthy, then incarcerated at USP Flo rence in Colorado, filed yet another § 2241 petition, this time in the United States District Court for the Di strict of Colorado ( “the District of Colorado”). In September 2008, the court dismissed the petition as successive. On appeal, the Tenth Ci rcuit reversed and remanded, concluding that5 [i]n light of the unsettled question of whether appellate court preauthorization is required before a prisoner may file a suc cessive writ under § 2241 or whether district courts may continue to address this issue as they did pre

- AEDPA, it seems problematic for the district court to dismiss [McCarthy’s] writ sua sponte based on the pr e - AEDPA version of § 2244(a). McCarthy v. Warden USP Florence , 338 F. App’x 739, 742 (10th Cir. 2009). On remand, the District of Colo rado denied McCarthy’s habeas petition on the merits, concluding that the BOP had not abused its discretion in refusing to grant nunc pro tunc designation . In November 2010, the Tent h Circuit, noting that it “ha[d] already once affirmed the BOP’s denial o f a request Mr. McCarthy previously made for such a designation,” upheld the District of Colorado’s judgment

. See McCarthy v. Warden, USP Florence , 403 F. App’x 319, 320

- 21 (10th Cir. 2010).
Mean while, in August 2010, McCarthy, who had been transferred b ack to USP Lewisburg, filed the instant § 2241 petition in the District Court , claiming that the BOP had “unlawfully transformed his concurrent state term . . . in to [sic] a consecutive state
term

. ” After the BOP had filed a response, McCarthy filed a tr averse, clarifying that he was challenging the BOP’s failure to treat his state and federal sentences as concurrent by designating , nunc pro tunc, a state facility as a federal prison. In light of this clarification, t he Magistrate Judge assigned to the c ase issued an order directing the BOP to file a supplemental response addressing whether this latest habeas petition was barred by 28 U.S.C. § 2244(a). That order permitted McCarthy to file a supplemental reply.6

In its suppl eme ntal response, the BOP argu ed that McCarthy’s petition w as indeed bar red by § 2244(a ). McCarthy, meanwhile, contended that the BOP had waived that argument by not including it in its original response, and that the Magistrate Judge could not raise the issue sua sponte. He also cla imed that his pe tition was not barred because he was challenging a “new decision” from the BOP. On December 8, 2010, the Magistrate Judge issued a report recommending that the District Court dismiss McCarthy’s habeas petition , concluding that the petition was an abuse of the writ and thus barred by § 2244(a) . McCarthy subsequently filed a notice o f appeal challenging that recommendation . T hat appeal was docketed at C.A. No. 11

- 1243, and was listed by the Clerk of this Court for possible dismissal due to a jurisdictional defect. Meanwhile, o n February 7, 2011, the District Court adopted the Magistrate Judge’s recommendation and dismissed the petition. McCarthy then filed a second notice of appeal, this time challenging t he District Court’s order. This l atter appeal w as docketed at C.A. No. 11

- 1404, and t he two appeals have since been consolidated.
II. Pursuant to 28 U.S.C. § 1291, we have jurisdiction over appeals from “ final decisions ” of the district courts. Because t he Magistrate Judge’s report is m erely a recommendation, not a final decision under § 1291, we lack jurisdiction over the appeal at C.A. No. 11

- 1234. See Cont’l Cas. Co. v. Dominick D’Andrea, Inc. , 150 F.3d 245, 250 (3d Cir. 1998 ) ; Siers v. Morrash , 700 F.2d 113, 115 (3d Cir. 1983) . Con versely,7

because the District Court’s February 7, 2011 order is a final decision under § 1291, we have jurisdiction over the appeal at C.A. No. 11

- 1404. In reviewing t hat order , “[w] e exercise plenary review over the District Court’s legal conclusions and apply a clearly erroneous standard to its findings of fact.” See O’Donald v. Johns , 402 F.3d 172, 173 n.1 (3d Cir. 2005) (per curiam). Having considered the parties ’ arguments, and f or the reasons set forth in the Magistrate Judge’s cogent report, which was adopted by the District Court, we agree with the court’s dismissal of McCarthy’s latest habeas petition as an abuse of the writ. Although it does not affect our decision here, we write furthe r to address a recent development highlighted by McCarthy i n his briefing

. Attached to his “Addendum Brief” i s a letter addressed to him , dated June 29, 2011, from the Honorable Peter C. Dorsey of the District of Connecticut. 2 The letter states as follows:

I have received your letter dated May 14, 2011, in which you request that I make your federal sentence run concurrently with your state sentence. I have written a letter to the Warden of USP Lewisburg recommending that your federal sentence run concurrently with your state sentence and that both sentences be s erved in one penal institution. (Attach. to Addendum Br.) The BOP did not address this letter in its response b rief; however, we trust that, if this le tter is indeed from Judge Dorsey , the BOP, to the extent it

2 Although J udge Dorsey was n ot McCarthy’s sentencing judge, McCarthy’s criminal case was reassigned to Judge Dorsey in or about January 2000 (at which time McCarthy was pursuing collateral relief)

.8

has not already done so, will give his reco mmendation due c onsideration and render a decision promptly. In light of the above, we will dismiss the appeal at C.A. No. 11

- 1243 for lack of appellate jurisdiction, and will affirm the District Court’s order at issue in C.A. No. 11

- 1404. McCarthy’s req uest for appointment of counsel is denied.